Implementing the Total Constitution: Towards a Normative Approach

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A Report on the Status of Constitutional Implementation to the Kenya Law Reform Commission

Overview

A key feature of our constitutional design is the establishment of an elaborate structure of constitutional implementation.As a central pillar of its design, the Constitution of Kenya (2010) establishes an elaboratescheme of implementation structures, enforcement mechanisms and oversight processes. It creates a framework for constitutional implementation by requiring the enactment of legislation, implementation of legal and institutional reforms and enforcementof constitutionality by courts through an expanded jurisdiction on a wide range of constitutional questions, including non-implementation of the Constitution. It vests on the Supreme Court jurisdiction to render advisory opinions, at the request of the national government, any State organ, or any county government with respect to any matter concerning county government. It further establishes oversight mechanisms, mainly the Constitutional Implementation Oversight Committee and Commission for the Implementation of the Constitution, the former as a parliamentary committee and the latter as an independent institution. These oversight bodies are constitutionally mandated to co-ordinate with the Attorney General and the Kenya Law Reform Commission in preparing legislation for implementing the Constitution.

This report reviews the status of constitutional implementation, more specifically, legislation enacted since the promulgation of the Constitution of Kenya. In the fifth year since the constitutional enactment, the time is ripe to review progress inthe legislative aspect of constitutional implementation, with the objective of ascertaining the status of legislative enactment as against constitutionalpurpose. Such a review aims at two main objectives. First, it seeks to determine an agenda for the drafting and subsequent enactment of the remainder of legislation either expressly required to be enacted under the Fifth Schedule of the Constitution or implied in the architecture and normative scheme of the Constitution. Second, it aims to identify gaps and inconsistencies in post-promulgation legislation with a view to recommending review and harmonization of such laws to ensure compliance with the Constitution.